JUDGMENT

Paripoornan, J.-The plaintiff in Civil Suit No. 40 of 1970-Civil Judge, Junior Division, Vaduj, is the appellant herein. His father one Shripati executed a possessory mortgage of the suit property, R.S. No. 244/23 situate at Lalgun Taluka Khatav, Distt. Satara, by Exhibit 35A dated 3.4.1947 for Rs. 1,200/- in favour of the first respondent, (1st defendant), Bapu Ganpati Jagtap. Pending this appeal, first respondent died on 1.6.1985. His three sons Nivruti Bapusaheb Katkar (Jagtap), Dnyandev Bapusaheb Katkar (Jagtap) and Sahelrao Bapusaheb Katkar (Jagtap) have been impleaded as his legal representatives. The second respondent Laxmi Devi Shripati Nale is the appellant s mother. Exhibit 35A mortgage was for a period of 12 years. The mortgagee was to take the income of the property and appropriate the same towards the interest due etc. Appellant s father died in 1953. The appellant was a minor then. The mortgage could not be redeemed within the period fixed. After the expiry of the said period, the appellant cause a notice to be sent agreeing to repay the mortgage amount Rs. 1,200/- and sought redemption. The first respondent declined to accede to the request. So, the suit was laid for redemption of the mortgage, Exhibit 35A.The first respondent pleaded that the transaction Exhibit 35A was really a sale. In the alternative, he pleaded that the plaint item is an inam and it was abolished by the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 (Maharashtra Act 60 of 1950) (hereinafter referred to as the Act). The land was resumed by the Government and was regranted to the first respondent (Ext. 26). So, the appellant has no subsisting right to redeem. The first respondent also pleaded that in case of redemption he should be paid compensation.

2. The trial court, by order dated 8.12.1971, dismissed the suit. In appeal the District Judge, Satara, in Civil Appeal No. 29 of 1972, by order dated 30.1.1974, decreed the suit and passed a preliminary decree for redemption and recovery of possession of the property. In second Appeal No. 514 of 1974, by order dated 19.11.1979, a learned single judge of the High Court of Bombay restored the judgment and decree of the trial court. That has resulted in the appellant s coming in appeal before this Court.

3. The trial court, the lower appellate court and the High Court have found that the Exhibit 35A is a deed of mortgage and not a sale. The trial court found that as per the Act the land vested in the Government and was regranted to the first respondent. The appellant has lost his right to redeem the property. The plea that the first respondent was only a trustee and Section 90 of the Indian Trust Act, 1882 was attracted, was repelled. In appeal the District Judge held that the first respondent-mortgagee failed to remit the occupancy price as enjoined on him, and by putting forward the plea that he is a tenant, he obtained the regrant and thus gained an advantage; it should enure for the benefit of the mortgagor and so, the right to redeem still vested in the appellant. It is a case where Section 90 of the Indian Trust Act was clearly attracted. In second appeal, the learned single Judge of the High Court took the view that (1) due to non-payment of the occupancy price by the plaintiff within the period of five years (on or before 25.1.1956) the suit property vested in the Government and this was not challenged; (2) the first respondent was taken to be a tenant and the land was regranted to him, (Ext. 26); and (3) it cannot be said that the first respondent gained an advantage by availing his position as mortgagee in getting the regrant. In the above premises, the suit for redemption was dismissed.

4. We heard counsel. Counsel for the appellant urged before us that the first respondent-mortgagee was bound to pay the occupancy price and by failing to do so he brought about the situation, enabling him to obtain a regrant of the property in his name by posing himself as a tenant; in oth